The Bill of Rights protects certain - wait for it - RIGHTS. Non-negotiable, so-called inalienable rights. Natural rights, not legislated privileges.
They are:
First Amendment – Establishment Clause, Free Exercise Clause; freedom of religion, speech, press, and assembly; right to petition.
Second Amendment – Militia, Sovereign state, Right to keep and bear arms.
Third Amendment – Protection from quartering of troops in peacetime.
Fourth Amendment – Protection from unreasonable search and seizure.
Fifth Amendment – Due process, protection from double jeopardy, self-incrimination, eminent domain.
Sixth Amendment – Criminal trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel.
Seventh Amendment – Civil trial by jury.
Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.
Ninth Amendment – Protection of rights not specifically delegated to Congress in the Constitution.
Tenth Amendment – Powers of States and people.
In today's political climate, however, all too many politicians and citizens have taken the attitude expressed by Capt. Barbosa in the first Pirates of the Caribbean movie: "...the code is more what you'd call 'guidelines' than actual rules.”
This attitude is nowhere as evident as when discussing the rights of business owners and the rights of those who carry firearms - employees and clients - in accordance with the provisions of the Second Amendment.
We frequently see and hear remarks like the following: "I would be upset if the government tried to tell me how to run my business..."
The fact of the matter is that the government ALREADY tells one how to run their business - in ways that are at-odds with the Constitutional protections afforded private citizens on property that is truly private. It requires business entities to construct bathrooms a certain way so as to accommodate the physically disabled. It specifies how many handicap parking spaces one must provide. It requires one to allow service animals (even in a restaurant), and prohibits one from discriminating in hiring - meaning that one can be forced in some instances to hire people with whom one might not normally associate in a truly private setting where the Constitutional right of association (First Amendment) is protected. Additionally, business entities may not discriminate against customers or employees based on race, ethnicity, religion, etc. - people with whom a private citizen might not choose to associate in the privacy of their home. These laws serve to protect the civil rights of employees and clients.
In short, civil rights, which the Bill of Rights establishes (including the civil right to bear arms), have been legally elevated above the rights of business entities.
Of all of the rights specified in the Bill of Rights, the Second Amendment exists to insure that other rights - including property rights - are secure. One must be able to defend that which belongs to one's self. Without a means of defense, all other rights - including property rights - are vulnerable, mere words on a piece of paper that really don't mean much. In other words, the right to own property exists only insofar as one is able to DEFEND that property. This includes the right to defend that property which is most precious to every person, their own body. As was observed by Bastiat in his work, published in 1850,
The Law:
"Man can only derive life and enjoyment from a perpetual search and appropriation; that is, from a perpetual application of his faculties to objects, or from labor. This is the origin of property. But also he may live and enjoy, by seizing and appropriating the productions of the faculties of his fellow men. This is the origin of plunder. When does plunder cease, then? When it becomes more burdensome and more dangerous than labor.....God, has bestowed upon every one of us the right to defend his person, his liberty, and his property, since these are the three constituent or preserving elements of life; elements, each of which is rendered complete by the others, and that cannot be understood without them. For what are our faculties, but the extension of our personality? and what is property, but an extension of our faculties?...every man has the right of defending, even by force, his person, his liberty, and his property." (emphasis added)
In other words, the right to protect one’s body from physical harm does not end at the doorway of a business, whether entering as an employee or a client.
The inviolable nature of the Second Amendment is found in the terminology contained therein.
The Second Amendment states, “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” As used in a legal context, as is the case in the Second Amendment, the phrase "shall not" indicates that the provision is non-negotiable; absolute; mandatory. When legislators wish to convey the unconditional, mandatory nature of a law, they insert the phrases "shall" or "shall not". NO ONE has the authority to abridge the practice of the right delineated in the Second Amendment - "...shall not be abridged." This is an absolute statement. Congressional acts restricting the right guaranteed in the Second Amendment using the Commerce Clause of the Constitution (using the Constitution against itself) are in violation of protections explicitly stated in the Ninth Amendment of the Constitution: "The enumeration in the Constitution, of certain rights [i.e. congressional authority], shall not be construed to deny or disparage others retained by the people."
The Second Amendment right to bear arms is one of the civil rights "retained by the people." And there is that pesky legal phrase again: "shall not". The Bill of Rights is not a smorgasbord from which we choose which rights we will protect. One may choose not to
practice a right, but that choice not to practice rights guaranteed in the Constitution
in no way infringes on or negates the practice of Constitutionally-protected rights by others.
While business owners (this author has been in that position himself) might wish to argue that their business is private property in the same way as their home, there are an overwhelming variety of laws governing business entities that say otherwise. As has been observed previously, those laws exist to protect the civil rights - the rights preserved in the Bill of Rights - of employees and clients. Business entities, places of public accommodation, do not enjoy the same level of Constitutional protection as that afforded to individual citizens. While that may be hard for some to swallow, even a cursory look at US business and civil rights law will bear this out.
